Third-in-Command at Justice Dept. Resigns

The Justice Department's third-in-command announced his resignation yesterday, becoming the sixth aide to Attorney General Alberto R. Gonzales to leave amid the political uproar over the firings of nine U.S. attorneys last year.

William W. Mercer -- who had been acting associate attorney general since September -- withdrew his nomination for the job just days before he was scheduled to appear at a Senate Judiciary Committee confirmation hearing Tuesday.

Mercer said he will return to his regular assignment as the U.S. attorney in Montana, writing in a letter to Gonzales that there was "no end in sight" to his nomination because of opposition from Senate Democrats.

"After much consideration, I have concluded that it is highly unlikely that both the Judiciary Committee and the Senate will take prompt action on my nomination in the near term, if ever," Mercer wrote.

Mercer is among half a dozen officials who have fled the senior ranks at Justice in the wake of the prosecutor firings, which have prompted congressional and internal investigations and have led lawmakers of both parties to call on Gonzales to resign. Mercer's departure means that nearly all of Gonzales's top aides, including Deputy Attorney General Paul J. McNulty, have tendered their resignations within the past four months.

"The attorney general is running out of fall guys," said Sen. Charles E. Schumer (D-N.Y.), one of Gonzales's congressional critics. "Six resignations into the U.S. attorney firing scandal, the attorney general inexplicably still acts as though he has the confidence and support of the country. He has neither."

Justice officials said Mercer made the decision to withdraw, based on his assessment of expected opposition from many Democrats and uncertain support from Republicans. No GOP members were expected to show up for Tuesday's confirmation hearing because of the Senate immigration debate, one official said.

Gonzales said in a statement that he was "very pleased that the department will continue to benefit" from Mercer's talent in Montana.

Mercer told fired prosecutors in Arizona and Nevada that they were being removed in order to make room for other candidates, according to congressional testimony from the former prosecutors. Mercer also participated in a sarcastic e-mail exchange with a department colleague last July about then-U.S. Attorney Carol C. Lam of San Diego, in which he wrote she had a "hideous" record and had "ignored national priorities and obvious local needs."

But Democrats were most critical of Mercer for spending much of his time in Washington over the past two years rather than in his permanent job as U.S. attorney in Montana. Mercer spent an average of three days a month in Billings, according to testimony. Montana's chief federal judge often criticized Mercer's absences and asked Gonzales to replace him. The attorney general refused and assured the judge in a November 2005 letter that Mercer's appointment was lawful.

On the same day that letter was written, however, Mercer instructed a GOP staff member to insert language into a USA Patriot Act reauthorization bill allowing federal prosecutors to live outside their districts to serve in other jobs, according to documents and interviews. The provision -- which retroactively applied to Mercer's tenure in Washington -- was passed by Congress last year. Lawmakers are considering legislation to repeal the measure.